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ORAL ARGUMENT SCHEDULED FOR JANUARY 19, 2012
11-5256
United States Court of Appeals
for the District of Columbia Circuit
SHELBY COUNTY, ALABAMA,
Plaintiff-Appellant,
v.
ERIC H. HOLDER, JR.,
in his official capacity as Attorney General of the United States,,
Defendant-Appellee,
EARL CUNNINGHAM; HARRY JONES; ALBERT JONES; ERNEST MONTGOMERY;
ANTHONY VINES; WILLIAM WALKER; BOBBY PIERSON; WILLIE GOLDSMITH, SR.;
MARY PAXTON-LEE; KENNETH DUKES; ALABAMA STATE CONFERENCE OF THE
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC.;
BOBBY LEE HARRIS,
Intervenors for Defendant – Appellees.
On Appeal from the United States District Court
for the District of Columbia
BRIEF FOR AMICI CURIAE NEW YORK, MISSISSIPPI, AND CALIFORNIA
JIM HOOD ERIC T. SCHNEIDERMAN
Mississippi Attorney General Attorney General of the
Post Office Box 220 State of New York
Jackson, MS 39205 Attorney for New York
601-359-3680 120 Broadway
New York, New York 10271
KAMALA D. HARRIS (212) 416-8016
Attorney General
State of California BARBARA D. UNDERWOOD
1300 I Street, Suite 125 Solicitor General
P.O. Box 944255 of Counsel
Sacramento, CA 94244-2550
916-445-9555 Dated: December 8, 2011
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CERTIFICATE OF INTERESTED PARTIES,
RULINGS, AND RELATED CASES
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,
Amici States of New York, Mississippi, and California in Support of
Appellees certify that, to the best of the udnersigned counsel’s
knowledge, the list of interested persons and entities, the identified
ruling under review, and list of related cases in the Brief for the
Attorney General as Appellee are correct.
. /s/ Barbara D. Underwood .
Barbara D. Underwood
Solicitor General
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES.......................................................................ii
INTEREST OF AMICI STATES................................................................ 1
SUMMARY OF ARGUMENT .................................................................... 3
ARGUMENT .............................................................................................. 5
POINT I - COMPLIANCE WITH SECTION 5 DOES NOT
IMPOSE UNDUE BURDENS ON COVERED
STATES ............................................................................... 5
POINT II - SECTION 5 CONTINUES TO PROVIDE
SUBSTANTIAL BENEFITS TO COVERED
JURISDICTIONS COMMITTED TO ELIMINATING
BARRIERS TO MINORITY POLITICAL
PARTICIPATION .............................................................. 14
A. Section 5 Has Produced Historic Progress and
Measurable Benefits in Mississippi. ............................ 14
B. Section 5 Has Led to Progress in New York and
Helped Secure the Rights of Racial and
Language-Minority Voters in the State....................... 18
C. Section 5 Is Responsible For Recent Progress in
California....................................................................... 23
D. The Advance Guidance Provided by Section 5
Helps States Avoid Potentially Costly and
Burdensome Litigation Under Section 2. .................... 26
CONCLUSION ......................................................................................... 30
i
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TABLE OF AUTHORITIES
Cases Page(s)
Alta Irrigation District v. Holder,
No. 11-cv-758 (D.D.C. July 15, 2011) ................................................. 25
Bartlett v. Strickland,
556 U.S. 1 (2009) .................................................................................. 27
Lopez v. Monterey County,
525 U.S. 266 (1999) ................................................................................ 6
United Jewish Org. of Williamsburgh, Inc. v. Carey,
430 U.S. 144 (1977) ................................................................................ 6
Statutes
42 U.S.C. § 1973b(a) ................................................................................. 24
Act of Aug. 6, 1975, Pub. L. No. 94-73, 89 Stat. 400 ............................... 22
Legislative History
Hearings
* Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act of 2006, Part
I: Hearing Before the Subcomm. on the Constitution of the H.
Comm. on the Judiciary 109th Cong. (2006) ...................................... 27
* Modern Enforcement of the Voting Rights Act: Hearing Before
the S. Comm. on the Judiciary, 109th Cong. (2006)............... 15, 16, 17
* Reauthorization of the Act’s Temporary Provisions: Policy
Perspectives and Views from the Field: Hearing Before
the Subcomm. on Constitution, Civil Rights and Property
Rights of the S. Comm. on the Judiciary, 109th Cong. (2006) ... passim
Authorities upon which we chiefly rely are marked with asterisks.
ii
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TABLE OF AUTHORITIES
Legislative History Page(s)
Hearings (cont’d)
* The Continuing Need for Section 5 Pre-clearance:
Hearing Before the S. Comm. on the Judiciary,
109th Cong. (2006) ..................................................................... 8, 11, 17
* Understanding the Benefits and Costs of Section 5
Pre-Clearance: Hearing Before the S. Comm. on
the Judiciary, 109th Cong. (2006) ....................................... 7, 11, 14, 27
* Voting Rights Act: Evidence of Continued Need: Hearing Before
the Subcomm. on the Constitution of the H. Comm. on
the Judiciary, 109th Cong. (2006) ............................................... passim
* Voting Rights Act: Section 203–Bilingual Election Requirements
(Part I): Hearing Before the Subcomm. on the Constitution of
the H. Comm. on the Judiciary, 109th Cong. (2006) .......................... 24
* Voting Rights Act: Section 5 of the Act–History, Scope, and
Purpose: Hearing Before the Subcomm. on the Constitution of
the H. Comm. on the Judiciary, 109th Cong. (2005) .......................... 19
Reports
* H.R. Rep. No. 109-478 (2006)................................................. 17, 21, 26, 29
H.R. Rep. No. 94-196 (1975)..................................................................... 23
S. Rep. No. 94-295 (1975) ......................................................................... 23
Congressional Record
152 Cong. Rec. H5054 (July 12, 2006) ..................................................... 12
152 Cong. Rec. S7969 (July 20, 2006)...................................................... 17
iii
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TABLE OF AUTHORITIES
Regulations Page(s)
Guidance Concerning Redistricting Under Section 5 of
the Voting Rights Act, 76 Fed. Reg. 7470 (Feb. 9, 2011) ................... 10
Revision of Voting Rights Procedures, 76 Fed. Reg. 21,239 (Apr.
15, 2011) ............................................................................................... 10
Voting Rights Act Amendments of 2006, Determinations Under
Section 203, 76 Fed. Reg. 63,602 (Oct. 13, 2011)................................ 21
Miscellaneous Authorities
Cal. Citizens Redistricting Comm'n,
http://wedrawthelines.ca.gov/................................................................ 8
DOJ Civ. Rts. Div.,
http://www.justice.gov/crt/about/vot/sec_5/ca_obj2.php ..................... 24
How To File An Electronic Submission,
http://www.justice.gov/crt/voting/sec_5/evs/ ......................................... 5
J. Gerald Hebert, Press Release: Local Governments Continue to
Pursue and Receive Voting Rights Act “Bailouts” (Aug. 17,
2001), available at http://voterlaw.com/press08162011.htm ............. 25
Jessica Lee, The Effects of Section 5 of the Voting Rights Act: A
California Case Study (May 20, 2009) (unpublished honors
thesis, Stanford University), available at http://publicpolicy.
stanford.edu/node/349.......................................................................... 24
Mississippi Standing Joint Reapportionment Comm.,
http://www.msjrc.state.ms.us/ ............................................................... 8
N.Y. State Legislative Task Force on Demographic Research &
Reapportionment, http://www.latfor.state. ny.us/ ................................. 8
Robert McDuff, Voting Rights Act and Mississippi: 1965-2006, 17
Rev. of L. & Soc. Justice 475 (2008) .................................................... 15
iv
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INTEREST OF AMICI STATES
Shelby County, Alabama, challenges the preclearance requirement
contained in Section 5 of the Voting Rights Act in part on the ground
that the extraordinary problems of discrimination that led to its
enactment in 1965 no longer exist, and that the burdens it imposes on
States and localities are no longer justifiable. Amici States Mississippi,
New York, and California are, for several reasons, particularly well
qualified to provide the Court with a perspective that should inform any
effort to resolve that claim.
First, Mississippi, New York, and California are among the 16
States covered in whole or in part by the Section 5 preclearance
provision, and thus have extensive first-hand experience with the costs
and benefits of its operation. Moreover, these Amici States contain a
substantial number of minority voters affected by the enforcement of
Section 5: Mississippi has the largest proportion of African-American
voters of any state in the country, and New York and California contain
some of the largest and most diverse counties within the covered
jurisdictions.
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Second, Mississippi, New York, and California share the
commitment to eliminating racial discrimination in voting rights which
animates the federal Voting Rights Act and, despite their own extensive
efforts to address this problem, recognize the continuing need for this
federal statute to address and remedy barriers to minority voter
participation in the political process. The record assembled by Congress
to support reauthorization of Section 5 in 2006 shows what Amici States
know to be true: that Section 5 continues to play an important role in
Mississippi, New York, and California—as well as in the other covered
jurisdictions—in remedying and deterring unconstitutional conduct.
Third, in the experience of Amici States, claims that the
preclearance obligations impose substantial burdens on the covered
jurisdictions or unreasonably intrude on state sovereignty are
mistaken. Moreover, those claims wrongly minimize the significant and
measurable benefits Section 5 has produced in helping Amici States
move towards their goal of eliminating racial discrimination and
inequities in voting. The Section 5 preclearance provision has helped
bring about tremendous progress in the covered States and has blocked
discriminatory voting-related changes at all levels of state and local
2
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government. This progress, while significant, remains fragile and
incomplete, and Section 5 continues to be a vital mechanism that
assists Amici States in working to achieve the equality in opportunities
for political participation that is a foundational principle of our
democracy.
SUMMARY OF ARGUMENT
With tremendous bipartisan support, Congress reauthorized the
Section 5 preclearance provision of the Voting Rights Act in 2006. The
record assembled by Congress showed that considerable progress has
been made in Amici States and other covered jurisdictions, but it also
contained ample evidence of ongoing conduct that hampers full and
equal political participation by minorities. Congress’s careful
examination of conditions in the covered jurisdictions confirmed the
important role that Section 5 has occupied in American democracy in
helping to overturn barriers to participation and block discriminatory
voting laws that would otherwise have been put into effect.
Amici States share the view of the United States and its
supporting intervenors that the 2006 Reauthorization of Section 5 is an
3
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appropriate exercise of Congress’s power to enforce the Fourteenth and
Fifteenth Amendments, and that substantial deference is owed to
Congress’s considered judgment about how best to give force and effect
to the guarantees enshrined in those amendments in the face of the
substantial evidence of ongoing and intentional discrimination.
This amicus brief does not repeat the arguments of the parties
explaining in detail why and how Section 5 satisfies constitutional
requirements. Instead, this brief focuses on showing, from the
experience of three covered jurisdictions, that Section 5 imposes no
undue burden on covered jurisdictions and that it provides substantial
benefits to covered States and localities committed to ending racial
discrimination and its vestiges in voting. Contrary to Appellant’s
claims that Section 5 constitutes an “intrusion” on States, App. Br. at
47, compliance with Section 5 has not imposed, and does not impose,
undue compliance burdens on the covered jurisdictions. Section 5
assists States rather than burdening them, because it serves as a
prophylactic mechanism that identifies and blocks discriminatory
voting-related changes before they take effect, and reduces the need for
burdensome litigation over these changes after the fact. Because
4
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voting-related changes may be implemented by a wide array of actors at
both the state and local level, the task of preventing unconstitutional
changes can be difficult. Amici States welcome the assistance provided
by the statutory preclearance requirement and the experienced staff of
attorneys who perform the preclearance function. In the experience of
Amici States, compliance with the preclearance requirement produces
significant benefits for Amici States and poses no undue costs or
burdens on covered jurisdictions.
ARGUMENT
POINT I
COMPLIANCE WITH SECTION 5 DOES NOT IMPOSE
UNDUE BURDENS ON COVERED STATES
The Section 5 preclearance mechanism is a streamlined process
that does not impose significant compliance burdens on States. Indeed,
the United States Department of Justice has undertaken extraordinary
steps to facilitate the Section 5 review process through the creation of
an online submission system and the issuance of new guidance and
regulations. See How To File An Electronic Submission, http://www.
justice.gov/crt/voting/sec_5/evs/ (last visited Dec. 7, 2011). Moreover,
5
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DOJ staff and personnel are readily available to answer questions and
field inquiries regarding the Section 5 review process. During its 2006
Reauthorization of Section 5, Congress received considerable testimony
regarding the costs and benefits associated with Section 5. The weight
of that evidence makes plain that Section 5 imposes no undue burden
on covered jurisdictions.
Both the practical experience of Amici States1 and the evidence in
the Congressional record confirm that the administrative burdens
associated with Section 5 compliance are minimal. While legislators
may engage in extensive deliberations preceding the adoption of a
voting change, the materials necessary for DOJ’s limited Section 5
review of those changes are generally both readily accessible and easy
to assemble. In general, covered jurisdictions need only assemble
enough information to help the Justice Department determine whether
a voting-related change was adopted with a discriminatory purpose or
will have the effect of worsening the position of minority voters. The
information and material relevant to DOJ’s analysis is often part of the
1See, e.g., Lopez v. Monterey County, 525 U.S. 266 (1999); United
Jewish Org. of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977).
6
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more expansive legislative record compiled in the period preceding
adoption of the new law or change. Congress heard testimony that
preparing Section 5 preclearance submissions is “a task that is typically
a tiny reflection of the work, thought, planning, and effort that had to
go into making the [election] change to begin with.” Understanding the
Benefits and Costs of Section 5 Pre-Clearance: Hearing Before the S.
Comm. on the Judiciary, 109th Cong. 10-11 (2006) (“Benefits and
Costs”) (testimony of Armand Derfner). Moreover, according to one
state elections official, “preclearance requirements are routine and do
not occupy an exorbitant amount of time, energy or resources.”
Reauthorization of the Act’s Temporary Provisions: Policy Perspectives
and Views from the Field: Hearing Before the Subcomm. on
Constitution, Civil Rights and Property Rights of the S. Comm. on the
Judiciary, 109th Cong. 12-13 (2006) (“Policy Perspectives”) (testimony of
Donald Wright).
Nor is the actual submission of the Section 5 preclearance
materials a costly undertaking. Today, covered jurisdictions are able to
make an administrative submission to DOJ online, thus eliminating the
need to prepare hard copies of materials for mailing and the costs
7
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associated with courier mail. See How To File An Electronic
Submission, supra. With more and more governing bodies promoting
transparency and making legislative records and other related
materials publicly accessible and available online (see e.g., Miss.
Standing Joint Reapportionment Comm., http://www.msjrc.state.ms.us/
(last visited Dec. 5, 2011); N.Y. State Legis. Task Force on Demographic
Research & Reapportionment, http://www.latfor.state. ny.us/ (last visited
Dec. 5, 2011); and Cal. Citizens Redistricting Comm'n,
http://wedrawthelines.ca.gov/) (last visited Dec. 5, 2011)), often Section
5 submissions can be completed with tremendous ease. Congress
received testimony from a former DOJ official, who indicated that
during her tenure, the government “went to great lengths to make sure
that the technology and internal operating procedures in place would
facilitate electronic submission of much of the required information.
[DOJ] conferred with state and local officials so [the Department] could
take their concerns into account as we structured our processing of
submissions.” The Continuing Need for Section 5 Pre-clearance:
Hearing Before the S. Comm. on the Judiciary, 109th Cong. 64 (2006)
(“Continuing Need for Section 5”) (response of Anita Earls). State and
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local officials are generally able to prepare Section 5 submissions easily
using templates prepared for previous submissions. Congress heard
evidence from one official that “[t]he ease and cost of such submissions
also improves with the use of previous submissions in an electronic
format to prepare new submissions. In my experience, most
submissions are routine matters that take only a few minutes to
prepare using electronic submission formats readily available to me.”
Policy Perspectives, supra, at 313 (testimony of Donald Wright).
Redistricting, now underway in jurisdictions across the country,
represents perhaps the busiest moment in each decade for Section 5
covered jurisdictions. DOJ has taken specific measures to minimize the
compliance burden of Section 5 in redistricting by issuing important
Guidance at the outset of the decennial redistricting cycle to help
jurisdictions understand both changes in the law over the course of the
preceding decade and the standards utilized during its review of Section
5 submissions. The Guidance also provides practical information
regarding the materials that jurisdictions must compile as part of a
Section 5 submission. DOJ issued its most recent Guidance on
February 9, 2011, and this document, written in layman’s terms,
9
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provides clear instructions to walk jurisdictions through the Section 5
administrative review process and its components. See Guidance
Concerning Redistricting Under Section 5 of the Voting Rights Act, 76
Fed. Reg. 7,470 (Feb. 9, 2011), available at http://www.justice.gov/
crt/about/vot/sec_5/sec5guidance2011.pdf. This Guidance has been
particularly helpful for covered States and their respective political
subdivisions—some of which have already adopted, or may soon adopt,
redistricting plans that will be submitted for review. In some instances,
local officials may be contending with the preclearance process for the
first time or be otherwise untutored in the specific requirements of the
Voting Rights Act.
In addition, on April 15, 2011, DOJ issued federal regulations,
which further elaborate the legal standards governing the Section 5
review process. See Revision of Voting Rights Procedures, 76 Fed. Reg.
21,239 (Apr. 15, 2011), available at http://www.justice.gov/crt/about/vot/
sec_5/sec5proc_2011.pdf. DOJ’s efforts to facilitate Section 5 compliance
through Guidance and regulations were considered by and documented
before Congress during the 2006 Reauthorization of Section 5.
Congress received testimony that DOJ “modified the Section 5
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regulations to make the process technically easier for jurisdictions.”
Continuing Need for Section 5, supra, at 64 (response of Anita Earls).
Congress also received testimony confirming that DOJ’s Guidelines
“identify specific information that jurisdictions must provide in order
for their submission to be deemed complete and reviewable” and “the
Guidelines are written in easy to understand language that generally
avoids ‘legalese.’” Benefits and Costs, supra, at 100 (testimony of Fred
Gray).
For Amici States, the Section 5 submissions of Congressional,
state legislative and local redistricting plans have historically proven to
be the most complex and time-consuming kind of voting-related change
presented for preclearance. However, because much of the demographic
data and other information relevant to DOJ’s analysis is naturally
included in and considered during the legislative process, even these
submissions have not proven significantly burdensome. Moreover,
because jurisdictions do not redraw their district boundaries often, any
arguable burden associated with preclearance of a redistricting plan is
generally only incurred once a decade. These views are consistent with
evidence before Congress which indicated that “[t]he costs of
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preclearance submissions are insignificant, except for redistricting
submissions, which entail a large amount of detailed demographic
information and election data. These redistrictings generally occur on a
state, county, or municipal level once every ten years since they follow
the release of the new census data. So even if they are large
submissions, they are very infrequent.” Policy Perspectives, supra, at
313 (testimony of Donald Wright).
The Section 5 review of other voting-related changes has not
proven significantly burdensome or intrusive on the time of those
officials who prepare materials for submission to DOJ. Generally,
counsel and staff personnel familiar with the Section 5 preclearance
process prepare administrative submissions. Thus, the Section 5
preclearance process is often both routine and familiar to the relevant
submitting officials in Amici States. 152 Cong. Rec. H5054 (July 12,
2006) (Rep. Price) (“‘Preclearance requirements are routine, and do not
occupy exorbitant amounts of time, energy or resources.’”). These
officials, given their familiarity and experience with the process, help
ensure that the initial submission is complete and contains all of the
relevant information that DOJ needs to make its preclearance
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determination. This perspective is consistent with the evidence before
Congress that showed that covered jurisdictions often “have staff
counsel that prepare submissions as part of their ongoing duties, so
additional costs are not incurred in those situations. The costs of
submissions are significantly reduced by ensuring that they are
promptly and correctly submitted the first time.” Policy Perspectives,
supra, at 313. Moreover, Congress also received evidence confirming
that election officials in covered jurisdictions “viewed Section 5 as a
manageable burden providing benefits in excess of costs and time
needed for submissions.” Id.
In addition, DOJ has administered the Section 5 review process
with a significant degree of flexibility and latitude, taking into account
the unique circumstances and crises that sometimes emerge within the
covered jurisdictions. In Amici’s experience, DOJ has expedited its
review of voting-related changes, where possible, to accommodate the
challenges that can confront the covered States on occasion. For
example, after Hurricane Katrina, DOJ issued a letter to Mississippi
acknowledging that they would be ready to expedite their review of any
last-minute voting-related changes that may have resulted from the
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hurricane. Id. at 141-42. In other instances, DOJ has made swift
preclearance determinations—well before the end of its statutorily
required 60-day review period. Benefits and Costs, supra, at 10-11
(noting “if there is a sudden need for a new polling place, that can be
precleared very swiftly if there is an election coming up”) (testimony of
Armand Derfner); Policy Perspectives, supra, at 312 (official noting that
he “never had a situation where the USDOJ has failed to cooperate with
our agency or local government to ensure that a preclearance issue did
not delay an election”) (testimony of Donald Wright). In no way, has
DOJ administered Section 5 in a manner that unduly obstructs or
infringes upon the dignity and sovereignty of Amici States.
POINT II
SECTION 5 CONTINUES TO PROVIDE SUBSTANTIAL
BENEFITS TO COVERED JURISDICTIONS COMMITTED
TO ELIMINATING BARRIERS TO MINORITY POLITICAL
PARTICIPATION
A. Section 5 Has Produced Historic Progress and
Measurable Benefits in Mississippi.
The Voting Rights Act is directly responsible for significant
progress in Mississippi. According to the 2010 Census, Mississippi has
a total population of almost 3 million persons, of whom 37 percent are
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African American—the highest proportion of any State in the country.
At the time of Congress’s 2006 Reauthorization, Mississippi had one of
the highest number of black elected officials of any of the covered
States: one of its four members in the U.S. House of Representatives
was African American, elected from a majority-minority district; and
approximately 27 percent of the members of the state legislature were
Black. See Modern Enforcement of the Voting Rights Act: Hearing
Before the S. Comm. on the Judiciary, 109th Cong. 142 (2006) (“Modern
Enforcement”); Robert McDuff, Voting Rights Act and Mississippi: 1965-
2006, 17 Rev. of L. & Soc. Justice 475, 475 (2008). This progress, which
endures today, reflects the fruits of effective Voting Rights Act
enforcement.
Congress received evidence concerning 112 objections that had
been interposed as to voting-related changes adopted or proposed
throughout Mississippi between the 1982 and 2006 Reauthorizations.
Objections were interposed because of changes involving redistricting
plans, at-large elections, annexations of territory, numbered post
requirements, majority vote requirements, candidate qualification
requirements, changes from election to appointment of certain public
15
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officials, polling place relocations, open primary laws, and a variety of
other measures. Modern Enforcement, supra, at 136. Congress received
testimony that of the 169 objections in Mississippi since enforcement of
the Act began, 99 objections related to changes involving the State's
counties. And, of these 99 objections, 79 were interposed between 1982
and 2006, covering more than half of the State's 82 counties. 2 Voting
Rights Act: Evidence of Continued Need: Hearing Before the Subcomm.
on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 1712-
13 (2006) (“Evidence of Continued Need”). For Mississippi, Section 5
has been a helpful and necessary complement to the State’s efforts to
ensure that all voters have unfettered access to the ballot box.
Moreover, it is axiomatic that the number of objections alone does
not tell the whole story about the vital role that Section 5 plays in
helping covered jurisdictions like Mississippi ensure fair and equal
political participation by minorities. Because Section 5 is in place,
officials within Amici States are more mindful of the potential impact
that proposed voting-related changes will have on minority voters.
Officials exercise a greater degree of due diligence in considering
whether new voting laws might hurt minority voters, recognizing that
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these laws will eventually be subject to Section 5 review. As Congress
found, “the existence of Section 5 deterred covered jurisdictions from
even attempting to enact discriminatory voting changes.” H.R. Rep. No.
109-478, at 57 (2006); Continuing Need for Section 5, supra, at 6
(testimony of Pamela Karlan) (“I know from my own experience doing
compliance in California, dealing with covered jurisdictions there, that
the Voting Rights Act has a huge deterrent effect, and it has a huge
effect in telling jurisdictions that the concerns of racial minorities
should not be at the bottom of the list.”).
Therefore, Section 5 not only prevents the implementation of
discriminatory voting-related changes that are adopted by state or local
bodies, but also helps prevent many, although not all, discriminatory
voting changes from being adopted in the first place. Accordingly,
perhaps “[t]he most significant impact of section 5 . . . is not from its
enforcement mechanism but from its deterrent effect.” 152 Cong. Rec.
S7969-S7970 (July 20, 2006) (testimony of Sen. Diane Feinstein);
Modern Enforcement, supra, at 87 (noting that “[o]bjection rates only
tell part of the story of Section 5’s success” and does not account for the
fact that the Section 5 “process often discourages jurisdictions from
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adopting voting changes that may place minority voters in a worse
position.”) (testimony of Robert McDuff).
B. Section 5 Has Led to Progress in New York and
Helped Secure the Rights of Racial and Language-
Minority Voters in the State.
Section 5 of the Voting Rights Act has played an equally central
role in helping to block and deter ongoing voting discrimination and
eliminate the vestiges of such discrimination in New York. Between
the 1982 and 2006 Reauthorizations, DOJ interposed fourteen Section 5
objections to voting-related changes related to New York’s three covered
counties (Bronx, Kings, and New York). 2 Evidence of Continued Need,
supra, at 1840. Congress received evidence showing that “Section 5
objections have helped prevent minority vote dilution in three broad
areas: redistricting, non-geographical election procedures (voting rules,
election control, suspension of elected bodies, etc.), and barriers to
political access for linguistic minorities. The scope of these categories is
significant: their breadth touches virtually every aspect of the vote.” 1
Evidence of Continued Need, supra, at 314. By providing this critical
guidance to state and local political actors in New York, the Section 5
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process has helped the State better fulfill its commitment to achieving
fair and equal political participation.
Among the recent objections arising in the Section 5 preclearance
process was a 1999 objection to a proposed change to adopt limited
voting for New York City school board elections. Limited voting, a
voting system in which a voter is permitted fewer votes than there are
positions available, has been recognized as a measure that dilutes
minority-voting strength by preventing minorities from casting their
votes in blocs. Congress received evidence that the proposed 1999
change would have made it three times more difficult for minorities to
elect candidates of their choice in New York City school board elections.
2 Voting Rights Act: Section 5 of the Act–History, Scope, and Purpose:
Hearing Before the Subcomm. on the Constitution of the H. Comm. on
the Judiciary, 109th Cong. 3244 (2005).
Also among those voting-related changes blocked by Section 5 was
a proposed set of changes to Chinese-language election procedures in
Kings and New York Counties. The 1994 objection was based, in part,
on the failure to provide for translation of candidates’ names on
machine ballots and the failure to translate operating instructions for
19
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voting machines. As the evidence before Congress demonstrated, the
translation of candidates’ names was critical because “it would be
extremely difficult, if not impossible, for these voters to understand
names written in English.” 2 Evidence of Continued Need, supra, at
1842-43.
During its 2006 Reauthorization, Congress received evidence that
DOJ “has justified, in part, a number of its objections to preclearance
under Section 5 in New York City on the basis of the existence of
racially polarized voting.” For example, 1990 and 1994 objections to
proposed changes involving judicial elections were, in part, “based on
the existence of racially polarized voting.” Id. at 1857-58.
New York has an especially distinctive perspective regarding the
central role that Section 5 plays in protecting the rights of its language-
minority voters. These groups, including Latino, Asian American, and
African-American voters, have historically faced discrimination based
both on their race and language-minority status. New York, like a
number of other Section 5 covered States including California, Texas,
and Florida, has a significant number of language minorities. Congress
received evidence “revealing that 63 percent of Asian Americans in New
20
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York reside in limited English proficient homes. Hispanics are similarly
situated, with more than 75 percent of Latinos nationwide reportedly
speaking a language other than English in the home, and 23 percent of
registered Latinos identifying Spanish as their primary language.” 1
Evidence of Continued Need, supra,. at 46. As further evidence of the
ongoing barriers to equal political participation by minorities, Congress
also “received testimony revealing that more than 800 Federal
observers were assigned to covered counties in New York City from
1985 through 2004 to protect Asian American and Latino voters’ full
participation in the electoral process.” H.R. Rep. No. 109-478, supra, at
44-45.
Recently released Section 203 determinations pursuant to the
Voting Rights Act reveal an increase in the number of counties
throughout New York State now legally required to provide language
assistance. See Voting Rights Act Amendments of 2006, Determinations
Under Section 203, 76 Fed. Reg. 63,602 (Oct. 13, 2011), available at
http://www.justice.gov/crt/about/vot/sec_203/2011_notice.pdf. Some of
these increases are attributable to recent and contemporary changes in
the State’s demographics—but these new demographic changes alone
21
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would not be sufficient to warrant an expansion of Section 5’s
geographic scope. In the covered counties of New York, Kings, and
Bronx, these language-minority groups have long been and continue to
remain vulnerable to the kind of entrenched voting discrimination that
Section 5 was specifically designed to redress.
Arizona and Georgia have submitted an amicus brief in support of
the appellant in which they argue that the definition of language-
minority groups is “arbitrary” and “not congruent.” Br. of Amici Curiae
the States of Arizona and Georgia at 23. While those claims have not
been raised by the appellant and are thus not properly before this court,
their argument, nonetheless, reflects a misunderstanding of the
coverage provision contained within Section 4(b) of the Act. When
Congress amended the coverage provision in 1975, its purpose was to
remedy unconstitutional conduct in voting that had not been addressed
by the original 1965 trigger. Act of Aug. 6, 1975, Pub. L. No. 94-73, 89
Stat. 400. Congress determined, based on twenty days of hearings
between the two chambers, testimony from over 60 witnesses, and
“overwhelming evidence” of discrimination, that language-minority
groups, including those in New York, faced significant levels of
22
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discrimination in States that had not been covered through the 1965
coverage provision. In response to this extensive body of evidence,
Congress revised the coverage provision to reach formerly non-covered
jurisdictions, including New York and others. See S. Rep. No. 94-295, at
24, 30, 32 (1975); H.R. Rep. No. 94-196, at 16, 22, 24 (1975). Contrary
to Georgia and Arizona’s claims, the determination about which groups
are subject to coverage has not been left to the Census Bureau; the
substantive factors used to identify covered jurisdictions were
determined by Congress and were most recently affirmed by Congress
during its 2006 Reauthorization, based on its findings that confirm the
ongoing discrimination faced by language-minority groups in the
covered jurisdictions.
C. Section 5 Is Responsible For Recent
Progress in California.
California’s recent experience under Section 5 similarly illustrates
the vitality of the statute, and also demonstrates its carefully tailored
nature. The statute has directly led to progress in California and
continues to do so. For example, between 1990 and 2005, the number of
Asian American elected officials in California increased from zero to
23
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nine as a result of portions of the State being subject to the protections
of the Voting Rights Act. Voting Rights Act: Section 203–Bilingual
Election Requirements (Part I): Hearing Before the Subcomm. on the
Constitution of the H. Comm. on the Judiciary, 109th Cong. 13 (2006)
(testimony of Margaret Fung).2 Between the 1982 and 2006
Reauthorizations of Section 5, there were four objections to proposed
voting-related changes in the covered counties of California. See DOJ
Civ. Rts. Div., http://www.justice.gov/crt/about/vot/sec_5/ca_obj2.php
(last visited Dec. 8, 2011).
The experience in California further shows that the bailout
mechanism in Section 5, specifically retained by Congress in 2006,
allows those Section 5 covered jurisdictions with no record of recent
discrimination to terminate their preclearance responsibilities. 42
U.S.C. § 1973b(a). In April 2011, the Alta Irrigation District filed a
petition before a three-judge panel of District Court for the District of
2 At least one researcher has found a positive statistical
correlation between Section 5 and voter registration and turnout in
California. See Jessica Lee, The Effects of Section 5 of the Voting
Rights Act: A California Case Study (May 20, 2009) (unpublished
honors thesis, Stanford University), available at http://publicpolicy.
stanford.edu/node/349.
24
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Columbia seeking to terminate its Section 5 responsibilities pursuant to
Section 4(a) of the Act. The Irrigation District, which stretches across
three California counties, included one county covered under Section 5.
On July 15, 2011, the District entered into a consent judgment and
decree permitting it to bailout. See Consent Judgment, Alta Irrigation
District v. Holder, No. 11-cv-758) (D.D.C. 2011) (Dkt. No. 9), available at
http://www.justice.gov/crt/about/vot/misc/alta_cd.pdf. Indeed, a number
of cities, counties, and other special purpose districts around the
country have successfully bailed out under the Voting Rights Act in
recent months. Alta Irrigation District filed its bailout action in the
U.S. District Court for the District of Columbia on April 20, 2011 and
secured an order granting its request less than 90 days later—
demonstrating that the timelines for achieving a bailout are speedy.
Alta Irrigation District’s recent bailout stands as evidence of the fact
that the Section 5 preclearance provision has a workable mechanism
that allows eligible jurisdictions a way to exempt themselves from the
requirements of the preclearance provision, further minimizing any
arguable federalism costs imposed on covered jurisdictions. See J.
Gerald Hebert, Press Release: Local Governments Continue to Pursue
25
USCA Case #11-5256 Document #1346731 Filed: 12/09/2011 Page 32 of 39
and Receive Voting Rights Act “Bailouts” (Aug. 17, 2001), available at
http://voterlaw.com/ press08162011.htm (referencing numerous recently
granted and pending bailout petitions in the D.C. District Court and
describing bailout as easy, cost-effective, and affordable). Additionally,
the statute’s bailout provision also provides an incentive for compliance
among the covered jurisdictions. See H.R. Rep. No. 109-478, supra, at
25 (noting that “covered status has been and continues to be within the
control of the jurisdiction such that those jurisdictions that have a
genuinely clean record and want to terminate coverage have the ability
to do so.”)
D. The Advance Guidance Provided by Section 5
Helps States Avoid Potentially Costly and
Burdensome Litigation Under Section 2.
One of the most significant benefits of the preclearance process to
the States is that a Section 5 objection will prevent a problematic voting
change from taking root in the covered jurisdictions, thus reducing the
likelihood that Amici States will face costly and protracted Section 2
litigation. Experience has shown that Section 2 litigation, unlike the
Section 5 administrative preclearance process, is time-consuming,
costly, and burdensome. Congress heard testimony revealing that the
26
USCA Case #11-5256 Document #1346731 Filed: 12/09/2011 Page 33 of 39
average costs associated with Section 2 litigation are around half a
million dollars. Specifically, the evidence showed that “[b]ringing vote
dilution cases . . . is a very, very costly enterprise. You need expert
witnesses, you need skilled lawyers. . . . I would estimate that the cost
of a vote dilution case, to bring a vote dilution case through trial and
appeal, runs close to half a million dollars.” Fannie Lou Hamer, Rosa
Parks, and Coretta Scott King Voting Rights Act Reauthorization and
Amendments Act of 2006, Part I: Hearing Before the Subcomm. on the
Constitution of the H. Comm. on the Judiciary 109th Cong. 65-66 (2006)
(testimony of Gerald Hebert). These litigation costs are equally high for
the States and jurisdictions that must defend themselves when
affirmative litigation is brought by private litigants. See Benefits and
Costs, supra, at 80 (noting that one county spent over $2,000,000
defending a Section 2 case, and that DOJ spent many hours too). While
Section 5 and Section 2 reflect distinct legal standards, Bartlett v.
Strickland, 556 U.S. 1, 20 (2009), a redistricting plan or voting-related
change precleared under Section 5 is less likely to be subject to future
challenge under Section 2 of the Voting Rights Act. The Section 5
review process helps to weed out those plans and voting-related changes
27
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that may not withstand scrutiny under the anti-dilution prohibitions
found with Section 2.
Beyond the higher costs attendant to Section 2 litigation, the
political reality is that Section 5 of the Voting Rights Act has had a far
more transformative impact than Section 2 in helping extend greater
access to the franchise for minority voters in the covered jurisdictions.
The benefits that Section 5 has had, for example, in Mississippi are
appreciable. Evidence before Congress showed that “litigation under
Section 2 of the Act has played a role in the changes that occurred in
Mississippi. But, it has only been a small part of the story. Objections
issued under Section 5 have made a far bigger difference.” 2 Evidence
of Continued Need, supra, at 1726.
For example, “127 black supervisors holding office [in Mississippi
at the time of the 2006 reauthorization] c[a]me from 67 different
counties,” and 43 of those counties had “incurred one or more Section 5
objections of redistricting plans for supervisors.” Id. Indeed, of the
group of 67 Mississippi counties, “[t]here were only two counties whose
redistricting plans were changed solely as a result of reported Section 2
lawsuits without any Section 5 objections.” Id. This evidence
28
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demonstrates that stripping away the protections of Section 5 that now
sit alongside Section 2 would produce a more costly and burdensome
statute that would not nearly achieve the same progress and good
government benefits that the statute as enacted by Congress can
achieve. H.R. Rep. No. 109-478, supra, at 57.
29
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CONCLUSION
For the foregoing reasons, this Court should uphold the D.C.
District Court’s decision and find Sections 5 and 4(b) of the Voting Right
Act constitutional.
Dated: New York, NY
December 8, 2011
Respectfully submitted,
JIM HOOD ERIC T. SCHNEIDERMAN
Mississippi Attorney General Attorney General of the
Post Office Box 220 State of New York
Jackson, MS 39205
601-359-3680 By: /s/ Barbara D. Underwood .
Barbara D. Underwood
Solicitor General
KAMALA D. HARRIS
Attorney General 120 Broadway, 25th Floor
State of California New York, NY 10271
1300 I Street, Suite 125 212-416-8016
P.O. Box 944255
Sacramento, CA 94244-2550 BARBARA D. UNDERWOOD
916-445-9555 Solicitor General
JANET SABEL
Executive Deputy Attorney General
for Division of Social Justice
RICHARD DEARING
Deputy Solicitor General
ALLEGRA CHAPMAN
Assistant Attorney General
Civil Rights Bureau
of Counsel
30
USCA Case #11-5256 Document #1346731 Filed: 12/09/2011 Page 37 of 39
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure,
Oren L. Zeve, an employee in the Office of the Attorney General of the State
of New York, hereby certifies that according to the word count feature of the
word processing program used to prepare this brief, the brief contains 5,300
words and complies with the type-volume limitations of Rule 32(a)(7)(B).
__/s/ Oren L. Zeve _______________
Oren L. Zeve
USCA Case #11-5256 Document #1346731 Filed: 12/09/2011 Page 38 of 39
CERTIFICATE OF SERVICE
I hereby certify that on December 9, 2011, the foregoing BRIEF OF
THE STATES OF NEW YORK , CALIFORNIA, AND MISSISSIPPI
AS AMICI CURIAE IN SUPPORT OF THE APPELLEES was filed
electronically with the Clerk of the Court using the CM/ECF system,
which will serve a copy of the foregoing on the following registered
CM/ECF users:
Bert W. Rein John A. Payton
Thomas McCarthy Debo Patrick Adegbile
William Spencer Consovoy Ryan Haygood
Brendan John Morrisey Dale Ho
Wiley Rein LLP NAACP Legal Defense &
1776 K Street, NW Educational Fund, Inc.
Washington, D.C. 20006 99 Hudson Street
brein@wileyrein.com 16th Floor
tmccarthy@wileyrein.com New York, NY 10013
jpayton@naacpldf.org
Thomas E. Perez dadegbile@naacpldf.org
Assistant Attorney General rhaygood@naacpldf.org
Diana K. Flynn dho@naacpldf.org
Linda F. Thome
Sarah E. Harrington Arthur B. Spitzer
Attorneys American Civil Liberties Union of
U.S. Department of Justice the National Capital Area
Civil Rights Division 1400 20th Street, NW
Appellate Section Suite 119
P.O. Box 14403 Washington, DC 20036-5920
Ben Franklin Station artspitzer@aol.com
Washington, D.C. 20044-4403
(202) 514-4706 Stephen J. Lechner
Mountain States Legal
Deborah Nicole Archer Foundation
New York Law School 2596 South Lewis Way
185 West Broadway Lakewood, CO 80227-2705
New York, NY 10013 lechner@mountainstateslegal.com
darcher@nyls.edu
USCA Case #11-5256 Document #1346731 Filed: 12/09/2011 Page 39 of 39
Jon M. Greenbaum John M. Nonna
Mark Posner Dewey & LeBeouf LLP
Robert Kengle 1301 Avenue of the Americas
Lawyers Committee for Civil New York, NY 10019-6092
Rights jnonna@dl.com
1401 New York Avenue, NW
Suite 400
Washington, DC 20005 Michele Lee Forney
jgreenbaum@lawyerscommittee.org James Evan Barton II
mposner@lawyerscomittee.org David Robert Cole
bkengle@lawyerscommittee.org Office of the Attorney General
State of Arizona
1275 W. Washington Street
Elizabeth B. Wydra Phoenix, AZ 85007-2997
Constitutional Accountability
Center John C. Neiman, Jr.
1200 18th Street, NW, Suite 1002 Robert D. Tambling
Washington, D.C. 20036 Office of the Attorney General
Elizabeth@theusconstitution.org State of Alabama
501 Washington Avenue
Montgomery, AL 36130
jneiman@ago.state.al.us
. /s/ Barbara D. Underwood .
Barbara D. Underwood
Solicitor General